Section III Protection of prisoners of war 1. Rights and obligations 2. Protection and treatment 3. Physical conditions of internment 4. Moral and psychological conditions of internment 5. Aid 6. Discipline a) General observations b) Escapes or attempts to escape c) Prisoners' representatives d) Sanctions 7. Repatriation a) Direct repatriation and hospitalization in a neutral country b) Release and repatriation at the end of hostilities 8. Death 9. Information bureaux and Central Tracing Agency 10. Assistance by relief societies and the ICRC 11. The right of Protecting Powers and the ICRC to visit

(Please note: Roman numerals indicate the number of the Convention or the Protocol (designated by the letter

P), Arabic numerals refer to the articles of these instruments.)

Section I

Status

The status of prisoner of War is governed jointly by article 4 of the Third Convention and by articles 43 and 44 of

the Protocol. The general principle is the following: any member of the armedforces of a Party to a conflict is a

combatant and any combatantcaptured by the adverse Party is a prisoner of war. [III, 4; P. I, 43, 44 ]

This general rule is supplemented by three types of provisions which specify the conditions in which armed forces are recognized as such, to extend the qualification (or the treatment) of prisoner of war to categories of persons not covered by the general rule, and finally to deprive, in a specific case, a captured combatant of his qualification as a combatant and hence of his status of prisoner of war.

a) To be recognized as such, the armed forces of a Party to a conflict must be organized and placed under a command responsible to that Party for the conduct of its subordinates, even ifthat Party is represented by a government or other authoritynot recognized by the adverse Party. In addition, these armedforces must be subject to an internal disciplinary system which, inter alia, enforces compliancewith the rules of internationallaw applicable in armed conflicts. In particular, this compliance requires combatants to distinguish themselves from civilians, except in particular circumstances (see point c below)by a uniform or other distinctive sign, visible and recognizableat a distance, while they are engaged in an attack or in amilitary operation preparatory to an attack. Violation by acombatant of the rules applicable in armed conflict ispunishable but if this combatant at least carries his arms openly during the engagement, he is not deprived of his right to thestatus of prisoner of war in case of capture. If the Party towhich these armed forces belong omits or deliberately refusesto enforce compliance with these rules, it can result in allmembers of these forces losing their status of combatant and prisoner of war . (1)

b) The status or treatment of prisoner of war is extended to various categories of persons who do not come under

thedefinition of combatants as given below, or who are not combatants. The following are thus also entitled to the

status of prisoner of war:

- those taking part in a levy en masse, that is, when the inhabitants of a non-occupied territory spontaneously take

up arms on the approach of the enemy to combat invasion without having had time to organize themselves as laid down under point a) above, if they carry their arms openly and respect the laws and customs of war;

-persons authorized to follow the armed forces without being directly part of them;

- persons arrested in occupied territory because they belong to the armed forces of the occupied country;

- military internees in a neutral country;

- members of non-combatant medical and religious personnel who are part of the armed forces.

c) In exceptional cases, when required by the nature of thehostilities, a combatant can be released from the

obligation todistinguish himself from the civilian population by wearing auniform or distinctive sign recognizable at

a distance duringmilitary operations. However, in such situations, these combatants must distinguish themselves

by carrying arms openlyduring the engagement and during such time as they are visibleto the adversary while

engaged in a military deploymentpreceding the launching of an attack in which they are to participate. Even failing

to comply with the obligation of carryingarms openly can deprive a combatant of his status, but not ofthe

guarantees relating to it, in the case of his being prosecutedfor carrying arms illegally either with or without other

offences. (2)

These provisions are not intended to modify the generally accepted practice of uniforms being worn by members of regular armed units of the Parties to conflicts.

To avoid uncertainty and prevent any arbitrary measures at the time of capture, the Protocol specifies that any person taking part in hostilities and captured is presumed to be a prisoner of war and is treated as a prisoner of war, even in case of doubt as to his status. In the latter case, the question will be decided by a tribunal at a later date. A person who, having taken part in hostilities, is eventually deprived of his right to the status of prisoner of war, benefits not only from the provisions of the Fourth Convention applicable in his case but also from the fundamental guarantees laid down in article 75 of the Protocol (see Section Ill, point 6 at end, below page 31).[III, 5; P. I, 45 ]

Spies and mercenaries are not entitled to the status of prisoner of war. Children under the age of fifteen shall not be recruited into the armed forces.(3) [P. I, 46, 47 ]

Children under the age of fifteen shall not be recruited into the armed forces.[P. I, 77 ]

Section II

Rules relating to the conduct of combatants

Part III of the Protocol does not confine itself to stating the rules relating to the status and treatment of prisoners of war. It also recalls the correct conduct of combatants in the course of hostilities. The fundamental principle forming the basis of these rules is that the right of the Parties to the conflict to choosemethods or means of warfare is not unlimited. [P. I, 35 ]

For example, it is prohibited to employ weapons, projectiles and methods and materials of warfare of a nature to cause superfluous injury, particularly those which are intended to cause, or can be expected to cause widespread, long-term and severe damage to the natural environment. Neither may the presence of civilian persons be used to render certain points or areas immune from military operations.[P. I, 51; IV, 28 ]

It is prohibited to kill, injure or capture an adversary byresort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to receive, or is obliged to accord protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy. The recognized emblems (the white flag, the emblem of cultural property, other recognized protective signs) and in particular the sign of the red cross or red crescent must not be used improperly. The use of the national insignia of States not Parties to the conflict is forbidden. The national insignia of the adverse Party must not be used during attacks or in order to shield, favour, protect or impede military operations.[P. I, 37; P. I, 38; P, I, 39 ]

The Protocol thus asserts that the law of armed conflicts demands a minimum of honesty on the part of the combatants. Other rules of conduct of combatants are summarized either in Section I of this chapter or in the relevant chapters of this manual (see in particular Chapter 1, points 2 and 5, Chapter 11, points 3-4 and 7-11 and Chapter IV, Section 1). But it should be stressed here, once again, that it is prohibited to declare that no quarter will be given, to threaten the adversary with this and to conduct hostilities in such a way that there are no survivors. The enemy who is hors de combat, or who has surrendered, or who shows his intention to surrender, or who has parachuted from an aircraft in distress, shall not be made the object of attack. If the capturing Party is unable to evacuate its prisoners from the fighting zone, it must release them and take all feasible precautions to ensure their safety.[P. I, 40, 41, 42 ]

Section III

Protection of prisoners of war

1. Rights and obligations

Regarding the rights of prisoners of war, the principle specifying that prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them, should be borne in mind. Prisoners of war are entitled in all circumstances to respect for their persons and their honour. [III, 12, 14 ]

Women must be treated with all the regard due to their sex and shall in all cases benefit from treatment at least as favourable as that granted to men. Finally, it should be noted that prisoners of war retain the full civil capacity they had at the time of their capture. Within the limits imposed by captivity, they therefore continue to enjoy their civil rights according to the law of their country o f origin. In particular, they can marry by proxy.[III, 14 ]

As for the duties of prisoners, they are generally derived from the laws of war and the rules of military discipline.

Some of these duties are formally stated in the Convention; thus article 17, relating to questioning of the prisoner, specifies that he is bound to give his name, first names and rank, date of birth and army, regimental, personal or serial number or, failing this, equivalent information.(4) However, the same article adds that no physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to obtain from them information of any kind whatever.[III, 17 ]

The Convention also provides for the case - which is not excluded, if the laws of the Power on which prisoners depend allow it - for the release on parole or promise. Article 21 states that prisoners released under these conditions will be bound, on their personal honour, scrupulously to fulfil, both towards the Power on which they depend and the Power which has captured them, the engagements of their paroles or promises.[III, 21 ]

This mention is important for it shows that honesty is essential to the successful application of humanitarian rules.

2.Protection and treatment

The Protocol prohibits declaring that no quarter will be given, threatening the adversary with this, and conducting hostilities in such a way that there are no survivors. The enemy who is hors de combat, who has surrendered or who shows his intention of surrendering, or who has parachuted from an aircraft in distress shall not be the object of attack.[P. I, 40, 41, 42 ]

In these art icles, the Convention states that prisoners of warmust at all times be treated humanely and that subject to any privileged treatment on account of rank, sex, state of health, age or professional qualifications, all prisoners of war shall be treated alike. The Protocol specifies that no prisoner may be subjected to physical mutilation or to medical and scientific experiments of any nature whatever, which are not justified by the medical treatment of the prisoner concerned and which are not in his interest. It nevertheless allows for exceptions in the case of donations of blood for transfusion or of skin for grafting, providing that these are voluntary.[III, 13, 16; P. I, 11 ]

Among the general principles protecting prisoners of war, the following should also be mentioned: they shall not be unnecessarily exposed to danger while awaiting evacuation from a fighting zone. When they have been captured under unusual conditions of combat which prevent their being evacuated in the normal way, they shall be released and all feasible precautions shall be taken to ensure their safety.[III, 19; P. I, 41 ]

Prisoners of war may be interned only in premises located on land and affording every guarantee of hygiene and wholesomeness. No prisoner of war may at any time be sent to or detained in an area where he may be exposed to the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military operations.[III, 22,23 ]

Prisoners without the recognized status of prisoner of war areat all times entitled to the fundamental guarantees (see Chapter IV, Section II, Point 2, letter g, page 43 and point 6 below, guarantees of judicial procedure).

3.Physical conditions of internment

The Detaining Power assumes general responsibility for the life and welfare of prisoners of war, who must be kept in good health. Women and children under the age of fifteen becoming prisoners of war must be treated with special respect and protected against any form of indecent assault. Other information concerning the application of these principles can be found under the following headings: [P. I 76, 77 ]

Quarters [III, 25 ]

Food [III, 26, 28 ]

Clothing [III, 27 ]

Hygiene and medical attention [III, 29, 30, 31 ]

Under all circumstances, prisoners of war will receive any medical care they may need and will preferably be treated by medical personnel of the Power on which they depend and, if possible, of their nationality.

Transfers [III, 12, 46, 48 ] Prisoners of war may only be transferred to a Power which is a party to the Convention and after the Detaining Power has satisfied itself that the Power in question is willing and able to apply the Convention.

Transfer within the territory of the Detaining Power will always be carried out humanely and in condit ions no less favourable than those enjoyed by the troops of the Detaining Power during their movements.

4.Moral and psychological conditions of internment

The Convention is not only concerned with the physical conditions of internment. A great number of articles are devoted to moral and psychological conditions. They deal not only with religion, intellectual and sports activities but also with the kind of work considered suitable to maintain prisoners'self-respect and mental well-being and protect them from boredom and idleness. In application of these principles, the Convention includes a number of provisions on the following matters:

Religion [III, 34, 35 ]

Intellectual and sports activities [III, 38 ]

Work [III, 49, 50, 51, 57 ]

In order to prevent the work carried out by prisoners from degenerating into inhumane exploitation or participation in the war effort of the Detaining Power, such work is limited by a series of very strict rules.

Property and working pay [III, 18, 28, 59, 60, 61, 62 ]

Correspondence [III, 71, 74, 76 ]

Prisoners of war shall be allowed to send and receive letters and cards free of postage.(5)

5.Aid

The Convention affirms the right of prisoners of war to receive relief.

Relief supplies may be individual or collective but the Convention indicates a preference to relief parcels of a standard model, intended for all the prisoners in a camp and shared out among them by prisoners'representatives.(6) [III, 72 ]

All relief shipments are exempt from import, customs and other dues and the experience acquired by the ICRC and National Red Cross Societies in the course of the two World Wars is implicitly recognized.[III, 74, 75 ]

6. Discipline

a) General observations

To ensure discipline in accordance with military honour, every prisoner of war camp is placed under the immediate authority responsible commissioned officer belonging to the regular at forces of the Detaining Power.[III, 39 ]

This officer must be fully acquainted with the text of the Convention and the relevant provisions of the Protocol. These texts must also be posted in each camp, in the prisoners'own language, in places where all may read them. The wearing of badges of rank and nationality, as well as decorations, shall be permitted, in due respect for the dignity of the persons concerned.[III, 41; P. I, 83; III, 40 ]

Military commanders must ensure that members of the armed forces under their command are aware of their obligations under the Conventions and the Protocol. They are responsible for preventing any breaches of these provisions, for suppressing them and, if necessary, reporting them to the competent authorities.[P. I, 87 ]

b) Escapes or attempts to escape

The Convention has several provisions relating to escapes or attempts to escape. These are accepted as being consistent with military honour and patriotic courage. Punishments incurred in cases of escape are consequently limited. Weapons may be used against prisoners who escape or attempt to escape, but such use should only be made as a last resort and must always be preceded by warnings appropriate to the circumstances.[III, 91, 92, 93; III, 42 ]

c) Prisoners' representatives

Article 79 stipulates that in all places where there are prisoners of war, except in those where there are officers, the prisoners shall freely elect by secret ballot, every six months, and in case of vacancies, representatives entrusted with representing them before the military authorities, the Protecting Powers, the ICRC and any other organization which may assist them. These prisoners'representatives shall be eligible for re-election. In camps for officers and persons of equivalent status or in mixed camps, the senior-ranking officer among the prisoners of war shall be recognized as the camp prisoners'representative.[III, 79 ]

This institution is very important. Benefiting from various prerogatives and facilities enumerated in article 81, the prisoners'representative is the intermediary qualified to further the physical, spiritual and intellectual well-being of prisoners of war.[III, 80, 81 ]

He not only supervises the distribution of relief supplies but also does all he can to mitigate the severities of discipline, to helpprisoners in their difficulties with the detaining authority.

Finally, it should be stressed that prisoners must have the unrestricted right to apply to the representatives of the Protecting Powers, either through their prisoners'representative or, if they consider it necessary, direct, in order to draw their attention to any points on which they may have complaints about their conditions of captivity.[III, 78 ]

d) Sanctions

The Convention specifies that prisoners of war shall be subjectto the laws, regulations and orders in force in the armed forces ofthe Detaining Power. [III, 82 ]

A general leniency clause protects prisoners of war against excessively severe interpretation of the laws and regulations. In deciding whether an offence committed by a prisoner of war should be subject to disciplinary or judicial punishment, the Detaining Power shall ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.[III, 83 ]

Disciplinary sanctions may only be ordered by the camp commander or an officer appointed by him, and in no case by a prisoner of war. Moreover, certain concessions are granted to prisoners undergoing disciplinary punishment: permission to take exercise and to be in the open air for at least two hours daily, permission to read and write, as well as to send and receive letters.[III, 96, 98 ]

Finally, in no case shall disciplinary punishments be inhuman, brutal or dangerous to the health of prisoners of war and the duration of any single punishment shall never exceed thirty da ys.[III, 89, 90 ]

As far as judicial sanctions are concerned, a prisoner of war may only be tried by a military court, except under specified circumstances. Furthermore, prisoners of war may not be sentenced to any penalties other than those imposed for the same acts committed by members of the armed forces of the Detaining Power. Collective punishment for individual acts is forbidden, as are corporal punishment, imprisonment in premises without daylight and, in general, torture or cruelty in any form whatsoever.[III, 84, 87 ]

It is important to note that prisoners who are prosecuted shall still benefit from the Convention, even if they are convicted.[III,85 ]

The death penalty can be imposed, in principle, for offences liable to capital punishment in the armed forces of the Detaining Power. Since the accused is not a national of the Detaining Power, owes it no allegiance, and is in its power as a result of circumstances beyond his control, the court must take these facts into account before pronouncing a death sentence.[III, 100 ]

As far as possible, the death penalty shall not be pronounced on pregnant women or mothers having dependent infants. If it is pronounced, it will not be carried out. The same will apply to prisoners under the age of eighteen at the time the offence was committed.[P. I, 76; P. I, 77 ]

Article 101 extends to at least six months the period that mustelapse between the time the death penalty is pronounced and the time the sentence is executed. Furthermore, Article 107 provides an opportunity for the Protecting Power to intervene in the case of a death sentence being pronounced.[III, 101, 107 ]

The guarantees of judicial procedure form part of the fundamental guarantees, which means that they must be accorded even toprisoners whose status of prisoner of war is not recognized.

Judicial procedure must be regular, i.e. it must include at leastthe following guarantees: the accused to be informed withoutdelay of the particulars of the offence he is alleged to have committed, which must have constituted an offence at the time it wascommitted; presumption of innocence; no coercion on a prisonerto force him to confess judgement to be pronounced in thepresence of the accused and, in principle, publicly. The prisonercannot be punished more than once for the same act or on thesame charge if it is based on the same law and the same judicialprocedure. [III, 86, 99; P. I, 75 ]The rights of defence are recognized and guaranteed and, accordingly, the prisoner of war shall be entitled to be assisted by one of his fellow prisoners, to be defended by a qualified attorney of his own choice, to call witnesses and, if he thinks it necessary, to employ the services of a competent interpreter. On the same conditions as members of the armed forces of the Detaining Power, he will have the right of appeal with a view to quashing or revising the sentence pronounced on him; any judgement and sentence shall be immediately reported to the Protecting Power.[III, 105,106; P. I, 75 ]

7. Repatriation

a) Direct repatriation and hospitalization in a neutral country

Even during hostilities, the Convention prescribes the direct return to their own countries of the wounded and sick

whose mental or physical fitness seems to have been seriously impaired, and hospitalization in neutral countries of

specific categories of those less seriously sick or wounded.[III, 109 ]

A model agreement, annexed to Convention 111 (Annex 1, referred to in Article I 10) cites numerous cases which

can give rise to application of this principle. Mixed Medical Commissions, set up at the outbreak of hostilities, are

called upon to decide what prisoners are to be repatriated. The Parties to the conflict must send back to their own

country, regardless of number or rank, seriously wounded and sick prisoners of war, after caring for them until they

are able to travel.[III, 112 ]

No sick or injured prisoner of war may be repatriated against his will during hostilities.

No repatriated person may be employed on active military service.[III, 117 ]

b) Release and repatriation at the end of hostilities

Situations which can arise at the end of a war have shown that the way in which the principle of the Code for

prisoners of war of 1929 was worded, requiring the repatriation of prisoners on the conclusion of peace, could be

detrimental to them, because experience has shown that a very long time can elapse between the time hostilities

cease and the tim e peace is concluded. To remedy this, the Convention states that repatriation will take place

"without delay after the cessation of active hostilities", i.e. after the cease-fire.[III, 118 ]

One exception to immediate repatriation is provided in the case of prisoners convicted or prosecuted for criminal

offences, who may be detained until the end of legal proceedings and, if necessary, until they have completed their

sentences.[III, 119 ]

8.Death

Prisoners of war are entitled to make wills. The Convention prescribes that wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by legislation in their countries of origin, which will take the necessary steps to inform the Detaining Power of its requirements in this respect.[III, 120 ]

The Convention specifies the conditions of burial (or, in certain cases cremation) appropriate to ensure respect for the dead and to safeguard the interests of their families. The Protocol supplements these provisions.[III, 120; P. I, 35 ]

In case of death from suspicious causes, an enquiry is opened in order to determine responsibility, particularly with a view to possible compensation for beneficiaries.[III, 121 ]

Death certificates must be forwarded as rapidly as possible to the Prisoner of War Information Bureaux.

9. Information bureaux and Central Tracing Agency

The services rendered to prisoners and their families by the Central Prisoner of War Agency (now known as the Central Tracing Agency) during the two World Wars and the numerous conflicts since 1945 are well known.

Created under the auspices of the ICRC, this Agency keeps in its archives over fifty million cards which constitute a unique information system to establish the rights of prisoners or their families. In particular, it contains all the information it can obtain through private or official sources concerning prisoners of war with a view to determining their identity, and any particulars about them relating to transfers, releases, repatriations, escapes, hospitalization and death.

These results have been consolidated by the Convention, which not only requires Governments to set up official bureaux to collect and transmit information about prisoners of war, but provides for establishment of a Central Prisoner of War Information Agency in a neutral country.[III, 122, 123; P. I, 34 ]

To facilitate the work of the national Bureaux and the Central Information Agency, States must grant them free postage for mail, as well as all exemptions provided for in Article 74 and, as far as possible, exemption from telegraphic charges or, at least, greatly reduced rates.(7) [III, 124 ]

Families have the right to know what has become of their relatives. As soon as circumstances permit and, at the latest, fromthe end of hostilities, the Parties to the conflict should thereforesearch for persons reported missing by an adverse Party and transmit all relevant information concerning such persons in order to facilitate the search. [P. I, 33; III, 119 ]

10. Assistance by relief societies and the ICRC

Relief societies, the ICRC and the Red Cross and Red Crescent Societies have played such an important role in helping prisoners of war during the two World Wars that the Convention devotes an article to them, to facilitate and encourage their activity.

This provision requires the Powers to grant them and their duly accredited delegates, all the necessary facilitates to visit prisoners, distribute relief supplies and material from any source, for religious, educational or recreative purposes, and help them organize their leisure activities within camps. The special status of the ICRC in this sphere must be recognized and respected.[III, 125 ]

1 1.The right of Protecting Powers and the ICRC to visit

Furthermore, the Convention provides that representatives of the Protecting Powers shall have permission to go to all places where prisoners of war may be, particularly to places of internment, imprisonment and labour. They shall have access to all premises used by prisoners. ICRC delegates shall enjoy the same prerogatives. The appointment of such delegates shall be submitted to the approval of the Power detaining the prisoners of war to

be visited.[III, 126 ]

The Parties to the conflict shall grant the ICRC all facilities within their power to enable it to carry out the humanitarian functions assigned to it by the Conventions and the Protocol, to assure protection and assistance to the victims of conflicts. The ICRC may also carry out any other humanitarian activities for the benefit of these victims, subject to the consent of the Parties to the conflict. The League of Red Cross Societies and National Red Cross and Red Crescent Societies shall also receive the necessary facilities to car ry out their humanitarian work.[P. I, 81; III, 9 ]

Notes

1. In article 4 of the Third Convention, the term " armed forces " or " regular armed forces " covers only " regular " manpower, i.e. constituted in application of the national legislation recognized by the Government in power at the time of the constitution. Members of " other " militia do not form part of the regular establishment. This distinction is eliminated by the Protocol.2. A reminder that The Hague Regulation concerning the laws and customs of war on land (article 1), confirmed by article 4 of the Third Convention, does not confer recognition of the status of prisoner of war to combatants not forming part of the " regular " army unless they fulfil the following conditions: a) being headed by a person responsible for his subordinates, b) having a fixed distinctive sign recognizable at a distance, c) carrying arms openly and d) conducting their operations in accordance with the laws and customs of war.3. Only persons acting under false pretences or in a deliberately clandestine manner can be considered as spies. Thus a member of the armed forces in uniform is not a spy even if he conceals himself to gather information.4. These particulars will be reproduced on the identity card which the Parties to the conflict are required to issue to the prisoner of war (III, 17, 18).5. Immediately after capture, the Detaining Power must issue the prisoner of war with a " capture card " by means of which he can himself inform his family and the Central Tracing Agency of his capture (see below, point 9, page 33).6. See below, point 6, page 29.

7. These facilities have been ratified by the Universal Postal Convention, Article 37 ( Acts of the Universal Postal Union, Brussels, 1952).